5.  The applicant was born in 1953 and lives in Warsaw.
6.  According to the applicant, in 1974 she received a job offer from the Japanese company Kanematsu-Gosho Ltd which she apparently refused. In 1974-1975 she worked for the Nigerian Embassy in Warsaw and in 1976 for the Indian Embassy.
7.  On a few occasions the security services attempted to recruit her as a collaborator but the applicant never consented despite threats. In December 1974 the applicant was summoned to the Warsaw Civic Militia Headquarters. She had a conversation with an officer of the counter‑intelligence service in connection with the job offer from the Japanese company. The officer tried to persuade her to collaborate with the service but the applicant refused and stated that she would rather decline the job offer.
8.  Subsequent meetings with officers of the Security Service (Służba Bezpieczeństwa) took place in 1975. The applicant consistently refused to collaborate. One such meeting took place in connection with the applicant’s request to obtain a passport for a holiday trip to Greece. The applicant was instructed to prepare a report from her trip which she submitted upon her return.
9.  For a number of years the applicant lived in England. She was involved in the activities supporting the Solidarity (“Solidarność”) Trade Union in Poland.
10.  The Law of 18 December 1998 on the Institute of National Remembrance (“the Institute Act”; Ustawa o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu) entered into force on 19 January 1999. The Institute’s tasks included, inter alia, storing and researching documents of the communist security services. The right of access to those documents was guaranteed primarily to “injured parties” as defined in the Institute Act.
11.  On 15 February 2001 the applicant applied to the Institute of National Remembrance (“the Institute”) for leave to consult all documents collected on her by the security services.
12.  On 2 March 2004 the applicant received a certificate informing her that she could not be considered an “injured party” (pokrzywdzona) within the meaning of section 6 of the Institute Act. In a letter of the same date she was informed that the Institute would continue to search the archives for documents regarding her. The certificate which the applicant received simply indicated that after two rounds of search the Institute had not found any documents created by the former security services about her.
13.  On 26 October 2005 the Constitutional Court reviewed the constitutionality of the provisions of the Institute Act regarding access to documents held by the Institute (case no. K 31/04). It found, inter alia, that sections 30 § 1 and 31 §§ 1 and 2 of the Institute Act, in so far as they deprived interested persons – other than injured parties – of the right to be provided with information about documents concerning them, were unconstitutional (see Relevant domestic law below).
14.  On 29 July 2006 the applicant again applied for access to all documents collected on her by the security services. She relied on the above Constitutional Court’s judgment of 26 October 2005. According to the applicant, that judgment stipulated that every interested person had the right to have access to documents held by the Institute concerning him or her on the basis of Article 51 § 3 of the Constitution, regardless of whether he or she had been granted the status of the “injured party”.
15.  On 15 November 2006 the applicant was allowed to consult documents in her file which concerned her as a subject of interest of the former security services (obiekt zainteresowania SB). However, she did not receive access to all documents about her and she could not receive any copies or make notes.
16.  On 25 November 2006 the applicant again applied to the President of the Institute for leave to consult all documents concerning her. She noted that the documents which she was allowed to consult so far confirmed that she had refused to collaborate with the security services. The applicant learnt for the first time from those documents that the security services had invented a plan to subject her to surveillance. She also discovered that she had been given a code name and expressed her indignation in this respect.
17.  In reply, on 20 February 2007, the Deputy Head of the Archive Office of the Institute informed the applicant that her request to have access to all documents concerning her could not be granted. In his view, according to the Constitutional Court’s judgment of 26 October 2005 the right of access to documents did not extend to all documents concerning the applicant but was applicable exclusively to those which treated her as a subject of interest of the former security services. Accordingly, she was informed that the consultation of documents by the applicant which had taken place on 15 November 2006 had been carried out in accordance with the procedure adopted by the Institute and that all documents which treated her as a subject had been disclosed.
18.  The Institute Act was amended by the Law of 18 October 2006 on disclosing information about the documents of the State security services from the period between 1944 and 1990 and the content of these documents (“the 2006 Lustration Act”), which entered into force on 15 March 2007. Henceforth, the rules on access to documents deposited with the Institute were set out in amended sections 30 and 31 of the Institute Act (see Relevant domestic law below). The status of an “injured party” was repealed. The amended Institute Act further stipulated that the Institute will create an Internet catalogue of persons who had collaborated or assisted the former State security services in their undercover activities.
19.  The Institute Act and the 2006 Lustration Act were further amended by the Law of 14 February 2007 which entered into force on 28 February 2007.
20.  The applicant, having been aware that her name appeared on the “Wildstein list” (see part C. below), was concerned that her name might be included in the official catalogue. This would have amounted to her official condemnation as an informant of the communist security services only on the basis of the entries made by the officers of those services without the applicant’s having been aware of it.
21.  On 11 May 2007 the Constitutional Court (case no. K 2/07) found the 2006 Lustration Act and the Institute Act as amended to a large extent unconstitutional and quashed many of its provisions with effect from 15 May 2007. It struck down, among others, section 30 § 2(2) of the Institute Act which excluded access of interested persons to documents indicating that they had collaborated or assisted the former State security services in their undercover activities (see Relevant domestic law below).
22.  In the meantime, on 20 March 2007, the applicant had again requested access to all documents concerning her pursuant to the rules in force as from 15 March 2007.
23.  On 19 November 2007 the Director of the Warsaw Branch of the Institute gave a decision in which it refused her access to two documents. He considered that the content of these two documents fulfilled the conditions specified in section 31 § 1(2a) of the Institute Act. This provision stipulated that the refusal to allow access to documents whose content indicated that the petitioner had been considered by the security services as a secret informant or an assistant in covert gathering of information should be given in the form of an administrative decision.
24.  The applicant appealed against that decision, submitting that it had been given pursuant to the rules declared unconstitutional by the Constitutional Court.
25.  On 19 February 2008 the President of the Institute quashed the decision on procedural grounds and referred the case back. He found that the Director of the Warsaw Branch of the Institute had not ruled on the application of the Helsinki Foundation for Human Rights, a human rights organisation, to join the proceedings as a third party.
26.  On 4 June 2008 the Director of the Warsaw Branch of the Institute gave a decision in which it refused the applicant access to three documents. He again relied on section 31 § 1(2a) of the Institute Act. The applicant appealed.
27.  On 12 August 2008 the President of the Institute upheld the impugned decision. He confirmed that the documents at issue indicated that the applicant had been considered by the security services as a secret informant or an assistant in the covert gathering of information. Accordingly, the refusal of access was justified under section 31 § 1(2a) of the Institute Act.
With regard to the applicant’s argument that the decision was based on the unconstitutional norm, the President of the Institute noted that section 30 § 2 of the Institute Act constituted a substantive legal basis for granting or refusing access to documents, while section 31 § 1 was a procedural provision. However, since the legislator decided to replicate in section 31 § 1 the same conditions justifying refusal as stipulated in section 30 § 2 then the former provision could not be interpreted without taking into account these conditions. The President of the Institute did not accept the applicant’s argument that since section 30 § 2 had been declared unconstitutional and repealed, then it followed that a different provision (section 31 § 1) with the same content was also unconstitutional. He went on to say that only when the Constitutional Court expressly declared unconstitutional a given provision of the law was the authority under the obligation not to apply such provision.
28.  The applicant lodged a complaint against the decision with the Warsaw Regional Administrative Court. On 27 May 2009 the Regional Administrative Court dismissed her complaint.
29.  On 7 July 2009 the applicant filed a cassation appeal with the Supreme Administrative Court. She argued, inter alia, that the decisions of the Institute refusing her access to documents of the security services entailed a breach of a number of constitutional provisions and of Article 8 of the Convention. They were, furthermore contrary to the Constitutional Court’s judgment of 11 May 2007 (case no. K 2/07).
30.  On 21 October 2009 the Supreme Administrative Court stayed the proceedings on the ground that a legal question on the constitutionality of, inter alia, section 31 § 1(2) of the Institute Act had been put to the Constitutional Court by a different panel of the Supreme Administrative Court. This provision was relied on as the basis of the Institute’s negative decisions in the applicant’s case.
31.  On 20 October 2010 the Constitutional Court (case no. P 37/09) ruled, among others, that section 31 § 1(2) of the Institute Act was incompatible with the Constitution, in particular the right to protection of private life (Article 47), the right of access to official documents concerning oneself (Article 51 § 3) and the right to request the correction or deletion of untrue or incomplete information (Article 51 § 4).
32.  On 14 January 2011 the Supreme Administrative Court resumed the proceedings. On 4 May 2011 it gave judgment quashing the Warsaw Regional Administrative Court’s judgment and the two preceding decisions of the Institute. It relied on the Constitutional Court’s judgment of 20 October 2010, in particular that court’s finding of unconstitutionality of section 31 § 1(2) of the Institute Act which had served as the legal basis of the decisions in the applicant’s case.
33.  On 22 August 2011 at the Warsaw Branch of the Institute the applicant was granted access to copies of all documents concerning her which had been created by the communist security services.
34.  In October 2004 the Institute of National Remembrance decided to create a list of officers, collaborators, candidates for collaborators of the State security services and of other persons whose files had been collected by it. This list consisted of the first name, the surname and, in some cases, the case file number. The list was made available on computers in the Institute library, to which access was restricted to researchers and journalists.
35.  In January 2005 the list, consisting of some 240,000 names, was published on the Internet and unofficially named “the Wildstein list” (“Lista Wildsteina”) after a journalist who had allegedly removed it from the Institute and published it. The publication of the list received wide media coverage, particularly since the names of some important public figures appeared on it.
36.  In response to these events, on 4 March 2005 Parliament passed an amendment to the Institute Act and added section 29a, which afforded persons concerned the right to obtain a certificate clarifying whether their name was on the list.
37.  In February 2005 the applicant discovered that her name appeared on the “Wildstein list”. On 9 February 2005 she applied to the Institute for clarification of whether her personal details corresponded to the data on the “Wildstein list”.
38.  On 27 January 2006 the Institute issued a certificate confirming that her personal details (names, surname, date and place of birth) corresponded to the data included in the Institute’s catalogue of officers, collaborators, candidates for collaborators of the State security services and of other persons. At the same time she was informed that the certificate did not confer on her the status of an “injured party” and did not entitle her to access documents held by the Institute.
39.  On 18 October 2007 the applicant requested the Warsaw Regional Court to institute the so-called “auto–lustration” proceedings under section 20(5) of the 2006 Lustration Act. This provision stipulated that lustration proceedings could also be instituted by a person who prior to the entry into force of the Lustration Act had held a public office and who was publicly accused of having been working or collaborating with the State security services between 1944 and 1990. The applicant relied on the Constitutional Court’s judgment of 11 May 2007 (case no. K 2/07), which extended the application of that provision to persons who had not held public office. She submitted her lustration declaration, in which she denied having been an intentional and secret collaborator with the secret services and requested the court to give a ruling that her declaration was true. The applicant maintained that the fact that her name had appeared on the “Wildstein list”, which had been made public on the Internet, constituted public accusation since the list had been regarded by the general public as a list of agents and collaborators.
40.  She submitted that the Institute had refused to grant her the status of an injured party and subsequently had denied her access to certain documents concerning her. These circumstances could have indicated that there had been some documents showing that she had collaborated with the security services. Additionally, she found her name on the “Wildstein list” and received a certificate that her personal data matched those on the said list. The applicant argued that such situation was grossly unfair and demanded to institute lustration proceedings with a view to terminating any speculation about her alleged collaboration with the security services. She also hoped that in the framework of these proceedings she would be provided with access to all documents about her stored by the Institute.
41.  On 18 December 2007 the Warsaw Regional Court dismissed her application to institute lustration proceedings, considering that she had not been publicly accused of having been a secret collaborator within the meaning of Article 20(5) of the 2006 Lustration Act. Firstly, it was not certain that she was the person whose name had been on the list. Even assuming that her name had been on the list, such fact could not be tantamount to an accusation of having collaborated with the security services. The court noted that the media had reported that the list had been only a sort of a catalogue facilitating the use of the Institute’s archives. It contained the names of persons who had been registered by the security services for various reasons; some had been actual secret collaborators but there were other persons who had been preselected for that role, without necessarily having been aware of that fact.
42.  The applicant appealed against the decision.
43.  On 29 February 2008 the Warsaw Court of Appeal upheld the impugned decision. The court found that there were no sufficient grounds to consider that the applicant had been publicly accused of having collaborated with the security services. The list of names produced by the applicant indicated that it contained not only the names of agents but also of victims. Furthermore, the court found that the applicant had not established that the inclusion of her name on the list had had any specific adverse consequences for her. It considered relevant that the Institute’s decisions and certificates referred to by the applicant were not public documents. No further appeal lay against that judgment.